ACTION ALLIANCE OF SENIOR CITIZENS OF GREATER PHILADELPHIA, ET AL.,
PETITIONERS V. DAVID NEWMAN, ACTING SECRETARY OF HEALTH AND HUMAN
SERVICES, ET AL.
No. 88-849
In the Supreme Court of the United States
October Term, 1988
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit
Brief For The Respondents
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-20a) is reported
at 846 F.2d 1449. The opinion of the district court (Pet. App.
25a-32a) is not reported.
JURISDICTION
The judgment of the court of appeals was entered on May 13, 1988.
A petition for rehearing was denied on July 25, 1988 (Pet. App.
21a-24a). On October 18, 1988, Chief Justice Rehnquist extended the
time for filing a petition for a writ of certiorari to and including
November 22, 1988, and the petition was filed on that date. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Prior to April 1, 1981, the Federal Reports Act required, among
other matters, that the Office of Management and Budget (OMB) review
federal agency information collection activities to determine whether
the collection of information is necessary for the proper performance
of the functions of the agency. In this case, OMB reviewed and
disapproved certain provisions of the Secretary of Health and Human
Services' (HHS's) general regulations, applicable to all agencies, for
compliance with the Age Discrimination Act (ADA). The Secretary then
modified his proposed regulations for HHS compliance with the ADA to
conform to OMB's disapproval. The question presented is whether the
court of appeals correctly upheld those modifications.
STATEMENT
1. Congress enacted the Federal Reports Act of 1942 (FRA), 44
U.S.C. 3501 et seq. (1976), to ensure that information needed by
federal agencies would be obtained with a minimum burden on the
business enterprises and other persons required to furnish the
information. 44 U.S.C. 3501 (1976). Congress assigned the Director
of the Bureau of the Budget the responsibility for implementing the
FRA and later reassigned that responsibility to the Director of the
Office of Management and Budget (OMB).
As of 1979, the FRA required all federal agencies to submit their
plans for the collection of information to the Director of OMB for
approval. 44 U.S.C. 3509 (1976). The FRA prohibited an agency from
conducting or sponsoring the activity unless the Director had "stated
that he does not disapprove the proposed collection of information"
(44 U.S.C. 3509(2) (1976)). If the Director determined that the
collection of information by the agency was unnecessary, for any
reason, the agency could not engage in the collection of information.
44 U.S.C. 3506 (1976).
On December 11, 1980, Congress passed the Paperwork Reduction Act
of 1980 (PRA), Pub. L. No. 96-511, 94 Stat. 2812, with an effective
date of April 1, 1981. The PRA amended the FRA to "strengthen the
clearance process." S. Rep. No. 930, 96th Cong., 2d Sess. 13 (1980).
The PRA is basically similar to the FRA, but it adds new requirements
and sets forth OMB's authority and responsibilities with greater
clarity and detail. For example, the PRA, unlike the FRA, requires
OMB to file public comments on any agency's proposed rule requiring
the collection of information and provides that the ultimate decision
to approve or disapprove the request must be made publicly available.
44 U.S.C. 3504(h)(4) & (6). The PRA also provides that the Act shall
not increase or decrease the authority of OMB "with respect to the
substantive policies and programs of departments, agencies and
offices, including the substantive authority of any Federal agency to
enforce the civil rights laws." 44 U.S.C. 3518(e).
2. The Age Discrimination Act of 1975 (ADA), 42 U.S.C. 6101 et
seq., prohibits discrimination on the basis of age in programs or
activities receiving federal financial assistance. See 42 U.S.C.
6102. The Secretary of Health and Human Services (HHS) oversees this
aspect of the ADA and is responsible for issuing general
government-wide regulations that serve as a model for each federal
agency that administers a program of federal financial assistance. 42
U.S.C. 6103(a). Each agency, including HHS, then issues regulations,
specific to the agency, for implementing the ADA. 42 U.S.C.
6103(a)(4).
On June 12, 1979, the Secretary of HEW (HHS's predecessor)
published final government-wide ADA regulations. 44 Fed. Reg. 33,776.
They contained a provision, 45 C.F.R. 90.43(b), stating that all
agencies must require a self-evaluation from all recipients of federal
aid within a specified time frame. In this self-evaluation, each
recipient would be required to identify and justify each age
distinction imposed in the program or activity. Following the
publication of the final government-wide regulations, the Secretary
submitted the self-evaluation requirement to the Director of OMB for
FRA review.
On September 24, 1979, the Secretary published a notice of proposed
rulemaking for agency-specific regulations implementing the ADA with
respect to financial assistance programs administered by HHS. 44 Fed.
Reg. 55,108. The proposed regulations included a provision, patterned
on the requirements of the general regulations, that would have
required all recipients of federal financial assistance under programs
administered by HHS to complete a self-evaluation within 18 months of
final promulgation of the HHS-specific regulations. 44 Fed. Reg.
55,115.
On February 20, 1980, OMB exercised its authority under the FRA to
disapprove the general government-wide regulations' self-evaluation
requirement. Pet. App. 27a, 48a-49a. OMB explained that HHS had
"failed to show the practical utility of the requirement," that HHS
had "not looked at alternative methods to heighten awareness of the
provisions of the Act without levying a recordkeeping requirement,"
and that OMB was "unable to estimate the burden the requirement would
impose since the supporting statement says 'little is known about the
number of age policies an average recipient imposes . . .'" (ibid.).
OMB further stated that it believed that other means existed to
satisfy the objective of the self-evaluation provision that would not
be as burdensome or costly; however, if it were shown at a later date
that non-compliance with the ADA was a serious problem, it would
reconsider the request (id. at 49a). OMB's disapproval thus
invalidated the general government-wide self-evaluation requirement.
See 44 U.S.C. 3506 (1976).
HHS published its final HHS-specific regulations on December 28,
1982. See 47 Fed. Reg. 57,850. Since HHS's general regulations were
to provide the model for the agency-specific regulations, and OMB had
disapproved the general regulations' mandatory self-evaluation
requirement, HHS modified its proposed agency-specific self-evaluation
requirement to comport with OMB's disapproval. The final regulation
required a self-evaluation only when HHS requested it in connection
with a complaint investigation or compliance review. See 45 C.F.R.
91.33(b). /1/
3. Petitioners brought this action in the United States District
Court for the District of Columbia to challenge the HHS-specific
regulation. They argued (among other contentions that are not pressed
here) (1) that HHS's general government-wide regulations required that
the agency-specific regulations contain a mandatory self-evaluation
requirement and (2) that Section 553 of the Administrative Procedure
Act, 5 U.S.C. 553, required HHS to provide notice and opportunity for
comment before it modified its proposed agency-specific rule. The
district court ultimately rejected both of those contentions. Pet.
App. 25a-32a. /2/ The court concluded that OMB acted within its
authority under the FRA when it disapproved the self-evaluation
provision of the government-wide regulation (Pet. App. 28a) and that
HHS properly conformed the agency-specific regulation to that
disapproval (id. at 28a-29a). The court further concluded that HHS
was not obligated to provide additional notice and opportunity for
public comment when it made that conforming change because the change
was a "logical outgrowth" of the proposed rule (id. at 30a-31a).
The court of appeals affirmed the district court's decision. Pet.
App. 1a-17a. The court agreed that OMB acted within its authority
under the FRA in disapproving the general regulation's mandatory
self-evaluation requirement and that since the disapproval denied
legal effect to the provision, there was no inconsistency between the
government-wide and the HHS-specific regulations (id. at 4a-10a). The
court also concluded that HHS's modification of the self-evaluation
requirement was a logical outgrowth of its proposed regulation that
did not require additional notice and opportunity for comment (id. at
10a-13a), and that HHS was "clearly justified in its implicit view
that the plausible benefits of a new round of commentary could not
justify the delay" (id. at 12a). Judge Wald dissented in part (id. at
18a-20a). /3/
ARGUMENT
Petitioners repeat the contentions, rejected twice below, that OMB
lacked authority to disapprove the Secretary's mandatory
self-evaluation requirement and that the Secretary should have
provided notice and allowed additional comment before modifying its
agency-specific regulation to conform to OMB's disapproval. Both of
those contentions are incorrect. Petitioners' challenge to OMB's
disapproval does, however, raise issues related to the government's
petition for a writ of certiorari in Dole v. United Steelworkers of
America, No. 88- . . . (filed Feb. 27, 1989). We therefore suggest
that the Court hold this petition pending its resolution of the
government's petition for a writ of certiorari.
1. Petitioners contend (Pet. 8) that OMB lacked authority under the
FRA to review agency information collection activities that do not
involve physical delivery of information to an agency. The court of
appeals correctly rejected this contention as "pure pettifoggery"
(Pet. App. 8a). Petitioners cite nothing in the FRA to support their
contention. As the court explained, petitioners "cannot seriously
believe that in enacting the Reports Act Congress was concerned solely
or primarily with private parties' costs of mailing data to
Washington; it is the recordkeeping and data-gathering that
constitute the burden" (ibid.). Indeed, OMB and its predecessor, the
Bureau of the Budget, have consistently interpreted the term
"collection of information" to include recordkeeping and
data-gathering regardless of whether the records or data are sent to
the agency (ibid.). The agency's longstanding reasonable
interpretation is, of course, entitled to deference. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-845 (1984).
Petitioners also contend (Pet. 9) that "OMB's power to disapprove
cannot extend absolutely to a substantive regulation entrusted by law
to the Secretary." The court of appeals correctly rejected that
contention as well. See Pet. App. 10a. Petitioners rely on Section
3518(e) of the PRA, which states that "(n)othing in this chapter shall
be interpreted as increasing or decreasing the authority" of OMB with
respect to "the substantive policies and programs" of other agencies.
44 U.S.C. 3518(e). But this case was decided under the FRA, which
does not contain that provision. Moreover, OMB did not call into
question the Secretary's substantive policies with respect to age
discrimination; OMB's disapproval of the self-evaluation requirement
was based on its conclusion, pursuant to 44 U.S.C. 3506 (1976), that
the Secretary could use other less burdensome methods to achieve his
policy objectives. Pet. App. 48a-49a.
In any event, petitioners' FRA contentions do not warrant this
Court's review because the PRA, which sets forth OMB's review
responsibilities in far greater detail, has now replaced the FRA. Any
questions concerning OMB's paperwork review authority should be
evaluated in a case involving the presently operative statute.
2. Petitioners' contention (Pet. 7, 13-14) that the Secretary
should have provided additional notice and opportunity for comment
before promulgating its final HHS-specific regulation is also without
merit. Petitioners, citing this Court's decision in Motor Vehicle
Mfrs. Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29
(1983), contend that the court allowed "a bypass of standards
established by this Court for an agency's rescission of regulations
under the Administrative Procedure Act" (Pet. 7). But, as the court
of appeals explained (Pet. App. 10a-12a), this case does not involve a
rescission of a final HHS-specific regulation; instead, it involves
"a change in rules between proposal and final adoption" (id. at 11a).
It is well settled that an agency can alter a proposed regulation
during that period between proposal and final adoption without a
second round of notice and comment if the changes are a logical
outgrowth of the proposal or if the advantages of additional comment
are outweighed by the public interest in expedition and finality. See
id. at 11a-12a. See, e.g., Small Refiner Lead Phase-Down Task Force
v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983). As the court of appeals
explained (Pet. App. 12a-13a), the Secretary's changes here were a
logical outgrowth of the general regulatory developments, and
additional comment would not have been a fruitful endeavor. The
court's determination, which simply involved the application of a
well-settled principle of administrative law to a particular
rulemaking, does not warrant this Court's review.
3. Petitioners also contend (Pet. 10-13) that the court of appeals'
resolution of the FRA issues "creates a serious conflict in principle"
with the Third Circuit's decision in United Steelworkers of America v.
Pendergrass (USWA III), 855 F.2d 108 (1988), which effectively
invalidated OMB's disapproval, under the PRA, of certain provisions of
the Secretary of Labor's hazard communication standard. Petitioners
apparently recognize that since USWA III involves interpretation of
the PRA, while the present case involves interpretation of the now
rescinded FRA, there is no square conflict between the two cases. We
agree, however, that the two cases are difficult to reconcile.
The government has filed a petition for a writ of certiorari
seeking this Court's review of the USWA III decision. See Dole v.
United Steelworkers of America, No. 88- . . . (filed Feb. 27, 1989).
That petition, unlike the petition here, would allow the Court to
examine OMB's authority under the PRA -- the presently operative
statute. Since the outcome of that examination could shed light on
the present case, we suggest that the Court hold the petition for a
writ of certiorari here pending the final resolution of the
government's petition.
CONCLUSION
The petition for a writ of certiorari should be held and disposed
of in light of the Court's resolution of the petition for a writ of
certiorari in Dole v. United Steelworkers of America, No. 88- . . .
(filed Feb. 27, 1989).
Respectfully submitted.
LAWRENCE G. WALLACE
Acting Solicitor General
JOHN R. BOLTON
Assistant Attorney General
JOHN F. CORDES
MARLEIGH D. DOVER
Attorneys
FEBRUARY 1989
/1/ HHS explained that this change was necessary "to be consistent
with the requirements of the Paperwork Reduction Act of 1980" (47 Fed.
Reg. 57,852 (1982)). OMB had disapproved the general regulations
pursuant to its authority under the FRA, but the FRA had since been
replaced by the PRA, and HHS accordingly cited that statute.
/2/ The government initially moved to dismiss the petitioners'
claims on the ground that they had not alleged sufficient injury to
their interests to establish standing. The district court adopted the
magistrate's recommendation that petitioners lacked standing to
challenge the HHS regulations. However, the court of appeals reversed
and remanded to the district court for further proceedings. Action
Alliance of Senior Citizens v. Heckler, 789 F.2d 931 (D.C. Cir. 1986).
/3/ Judge Wald agreed that OMB lawfully disapproved the general
regulation's mandatory self-evaluation requirement, but she believed
that HHS should have sought additional comment on its modification of
the agency-specific self-evaluation requirement (Pet. App. 18a-20a).